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Will international court decisions influence U.S. Supreme Court on same-sex marriage?
Dueling briefs argue how overseas court decisions on same-sex marriage should figure into the Supreme Court's deliberations on the question, about which arguments will be heard next week. - photo by Mark A. Kellner
The U.S. Supreme Court should consider international legal precedent when it considers whether to legalize same-sex marriage, but legal scholars differ on whether foreign court rulings favor gay marriage or not.

A legal brief filed by a group of scholars suggests the arc of global legal understanding bends towards judicial recognition of same-sex marriage, and that the United States' own views of individual rights and human dignity should move the Supreme Court toward settling the matter for the entire country.

Another coterie of scholars argues in its brief that a global judicial consensus supporting gay marriage is overstated. They claim that only one national high court Brazil's snubbed the legislative process and created a national mandate from the bench, while other countries decreed that a legislative resolution was the best answer. These scholars ask the American justices to rule that state legislatures should decide the issue.

The legal filings are among more than 100 amicus curiae, or "friend of the court," briefs that have been submitted to the Supreme Court, according to the independent website, in advance of Tuesday's hearing on whether same-sex couples have a constitutional right to marry and whether states must recognize same-sex marriages from outside their borders. The justices are expected to rule by June 30, when its current term concludes.

The appeal before the high court is a consolidation of cases from Kentucky, Michigan, Ohio and Tennessee, all of which had their same-sex marriage bans upheld by the federal appeals court in Cincinnati. That ruling conflicted with other federal appellate courts that struck down marriage bans in seven states and subsequently led to the legalization of same-sex marriage in a number of other states within the jurisdiction of those federal courts.

The U.S. Supreme Court has considered foreign legal decisions before in cases involving sexuality. Justice Anthony Kennedy, often viewed as a deciding swing vote between conservative and liberal factions in critical cases, mentioned earlier British and European legal decisions in striking down a Texas anti-sodomy law in 2003.

Differing interpretations

Although the question of foreign legal influence might seem esoteric, one of the legal scholars involved in the briefs, Lynn Wardle of Brigham Young University, said the topic could be central to the justice's decisions.

"It is important because the Supreme Court has looked to legal developments in other countries to get a sense of evolving social and legal mores when interpreting the Constitution in some past cases," Wardle said.

Six American legal scholars who specialize in international legal studies, led by Yale University law professor Howard Koh, a former State Department legal official, lent their names to an amicus brief filed with the Supreme Court in March. They argue the justices should weigh the opinions of other nations' judiciaries because "fundamental principles such as 'liberty,' 'dignity,' and 'equality' are not solely American, but rather universal."

At the same time, the Koh-led group said, a Supreme Court ruling in favor of marriage equality "will certainly influence the decisions of other liberal democracies" wrestling with the issue.

"This Court does not stand alone in the world," they wrote, noting elsewhere in their brief that courts in Fiji and Hong Kong invoked the 2003 Texas sodomy ruling in striking down their own laws on homosexual conduct.

Concluding their argument, the scholars wrote, "In the past 14 years, numerous democratic nations around the world have honored the equal protection legacy of this Court by embracing marriage equality."

Noah Benjamin Novogrodsky, a law professor at the University of Wyoming College of Law in Laramie and one of the attorneys who filed the Koh group's brief said that while decisions in other nations aren't binding on the U.S., "the way foreign courts and legislatures have interpreted equality, dignity and liberty in the context of same-sex marriage, is instructive" to the American judiciary.

A legislative question

But whether taking cues from foreign judicial rulings would point American jurists toward a ruling legalizing same-sex marriage across the country far from uncertain, according to Wardle and colleagues Elizabeth A. Clark and W. Cole Durham Jr. of the International Center for Law and Religion Studies at BYU.

Writing on behalf of 54 other legal scholars from around the world who signed on to the document, the three say in their own amicus brief, "There is simply no 'emerging global consensus' for same-sex marriage," despite the arguments of Koh and his legal team.

In an essay published on website, the authors contend a consensus opposite that claimed in the Koh brief has emerged. They cite 12 national and international tribunals in 11 countries have "explicitly upheld male-female marriage as consistent with human rights."

"The vast majority of nations, even those protecting LGBT rights, define marriage as solely the union of male-female couples," and believe "respect for legislative processes in resolving questions of same-sex marriage, rather than short-circuiting them through judicial intervention, pays dividends for all in the long run," the Wardle-led brief stated.

In their essay, Wardle, Clark and Durham wrote that diverse social views on same-sex marriage has "led virtually all foreign jurisdictions to defer to legislatures on this issue." The writers assert that having a supreme court decide this policy for a nation would circumvent the legislative process, which the writers say is "the proper, democratically legitimate forum" in which to decide the question.

Referencing the national debate still present 40 years after a decision on abortion in Roe v. Wade, the authors said a "judicial rush to judgment" would be "particularly inopportune" in a country where social attitudes on the marriage issue already are shifting.

According to 2014 research by the Public Religion Research Institute 54 percent of all Americans support legal marriage for gay and lesbian couples, while 38 percent oppose it. Those numbers mirror 2014 numbers from the Pew Research Center, which last September said 52 percent of Americans are in favor and 40 percent oppose. Pew said those figures are an about-face from 2001, when 57 percent of Americans said they opposed same-sex marriage and only 35 percent said they were in favor.

'American exceptionalism'

Whether attorneys arguing before the court Tuesday or the justices themselves consider international judicial decisions on marriage is unknown. But attorney and Marriage Law Foundation President William Duncan said regardless of how other countries rule, the U.S. Supreme Court's final decision will rest upon the majority's view of what the Constitution says.

"International precedent will be meaningful and relevant, but I think the basic answers are really going to be in the way the court interprets its responsibility under the U.S. Constitution," he said.

Novogrodsky agreed that foreign rulings don't necessarily set a pattern for the Supreme Court. The American court's rulings on Second Amendment issues involving gun ownership, and its permitting states to impose a death penalty for capital crimes, for example, differ from those of many other nations.

"Youre correct that in some areas, the Supreme Court has reinforced American exceptionalism," Novogrodsky said. "In other areas, most notably the decriminalization of consenting same-sex activity, the court has looked to the practices and jurisprudence of other developed democracies."
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